Dubuc v. State of Oklahoma

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS JUN 3 2002
TENTH CIRCUIT PATRICK FISHER
Clerk
BRIAN DALE DUBUC,
Plaintiff - Appellant,
v.
No. 02-6082
STATE OF OKLAHOMA; (Western District of Oklahoma)
OKLAHOMA DEPARTMENT OF (D.C. No. CIV-01-1735-F)
CORRECTIONS, Medical Services;
CORRECTIONS CORPORATION OF
AMERICA; JOHN DOE, insuring
agent of Corrections Corporation of
America; EZELL, individually and in
his official capacity as Deputy
Warden; DENNIS JOHNSON,
individually and in his official
capacity as Chief of Security of Davis
Correctional Facility; KATHY
MILLER, individually and in her
official capacity as Medical
Administrator of Davis Correctional
Facility; HEATH, individually and in
his official capacity as
Doctor/Physicians Assistant of
Corrections Corporation of America;
JOE CROW, individually and in his
official capacity as Canteen
Owner/Operator; VIVIAN DAVIS,
individually and in her official
capacity as Nurse; MARK SPARGO,
individually and in his official
capacity as Correctional
Officer; OFFICER STORY, OFFICER
WARNELL, SENIOR DAVIS and
SENIOR YANDELL, in their
individual and official capacity;
SHANE T. FINDLEY, individually
and in his official capacity as Senior
Officer; RONDA SMITH ROBINSON,
individually and in her official
capacity as Acting Designee Grievance
Officer,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges.
After examining appellant’s brief and the appellate record, this court has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
Appellant Brian Dale Dubuc, an Oklahoma state prisoner, appeals the
district court’s dismissal of the civil rights complaint he brought pursuant to 42
U.S.C. §§ 1983 and 1985(3). The district court denied Dubuc’s motion to proceed
in forma pauperis (ifp), concluding that Dubuc was barred from proceeding ifp
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
because he has previously filed three or more civil actions ifp which were
dismissed as frivolous, malicious, or for failure to state a valid claim. See 28
U.S.C. § 1915(g). The court addressed and rejected Dubuc’s arguments that 28
U.S.C. § 1915(g) is unconstitutional and that he is in “imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g) (providing an exception to the § 1915(g)
bar). The court then dismissed Dubuc’s complaint without prejudice for failure to
pay the filing fee. Dubuc brought this appeal.
Dubuc has filed a motion to proceed ifp on appeal together with an
appellate brief. In his brief, Dubuc does not contest the district court’s
conclusion that he has three strikes but, instead, renews his argument that 28
U.S.C. § 1915(g) is unconstitutional and also argues that the district court erred
when it concluded that he had not demonstrated that he is under imminent danger
of serious physical injury. After a review of Dubuc’s appellate brief, the
appellate record, and the applicable law, we agree with the district court’s
conclusion that Dubuc’s challenge to the constitutionality of 28 U.S.C. § 1915(g)
is foreclosed by Tenth Circuit precedent. See White v. Colorado, 157 F.3d 1226,
1232 (10th Cir. 1998); see also Kinnell v. Graves, 265 F.3d 1125, 1127-28 (10th
Cir. 2001). We also agree that Dubuc has failed to identify any facts suggesting
that he is in “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
Accordingly, because Dubuc does not contest the district court’s conclusion that
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he has three prior strikes, Dubuc’s motion to proceed ifp on appeal is denied and
this appeal is dismissed for failure to pay the appellate filing fee.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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